TaxTMI 
TaxTMI 
2016 (8) TMI 534
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.... Office and for the balance amount of Rs. 17,93,114/- did not accept Revenue's proposal. 2.2 Show cause notice had been issued, whereas the appellant filed a refund claim on 23/4/13 with the Deputy Commissioner requesting therein to allow them to take back the credit of the amount of Rs. 5,70,549/- debited under protest on 1/4/13 wrongly, as the capital goods received by them during the period in question where actually used for the manufacture of capital goods and as such credit availed was according to the Cenvat Credit rules. 2. SCN dated 01/07/13 was issued proposing to reject the refund claim of Rs. 5,70,549/- and the same was adjudicated on contest by the O.I.O rejecting the refund claim observing that although the appellant had increased their installed capacity from 5000 MT to 15000 MT per day by fabrication of different items, but it does not entitle them to avail the Cenvat credit on each and every item used by them for the purpose, since entitlement of Cenvat credit was governed by the relevant provisions of CCR 2004 as it existed during the period concerned. 3. Being aggrieved the appellant carried the matter before the Id. Commissioner (Appeals) who, vide the im....
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....ions and assumption, which is fit to be set aside, The Id. Counsel further relies on the order in appeal dated 10/8/15 passed by the Commissioner (Appeals), Central Excise, Meerut I, being order in appeal No. MRT/EXCUS/000/APP I/165/15-16 in the appellant's own case wherein for the amount of Cenvat credit of Rs. 17,92,114/- (Rs. 23,06,106/- + Rs. 5,70,549/-)under similar facts and circumstances for similar capital goods fabricated in the course of expansion of the installed capacity of the unit of the appellant, the Id. Commissioner (Appeals) have been pleased to allow the Cenvat credit observing as follows: - "The main issue for decision before me, in the instant case, is whether credit on MS. Angle, Plates, Sheets, Channels and Section etc. is admissible to the appellant or not as they are not covered under the definition of capital goods as given in Rule 2 (a) nor in definition of inputs as given in Rule 2 (k) of Cenvat Credit Rules. In this regard at the very outset, I will like to discuss the definition of input. Input has been defined in Rule 2 (k) of the Cenvat Credit Rules, 2004. Explanation 2 to Rule 2 (k) reads as under : 'Explanation 2 Inputs includes....
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....ubject certificate as far as the fabrication of capital goods and their use is concerned. I find that the appellant failed to show the production and clearance of claimed capital goods, in monthly return /ERI. However there is sufficient evidence which supports that the impugned goods viz. M.S. Angle, Plates, Sheets, Shape, Channels and Section, etc. have been received and used in the factory for fabrication of various items of machine, machinery parts accessories thereof and the fact is also supported by the Chartered engineer's certificate certifying the usage of same, therefore in my opinion, these goods qualify the definition of input in terms of Rule 2 (k) of CCR Rules, 2004 for the purpose of availing CENVAT Credit facility. There is enough corroborative evidence to prove that the inputs received have actually been used in the fabrication of capital goods. In this context it is relevant to observe that the Hon'ble Supreme Court in the case of CCE Jaipur Vs Rajasthan Spinning Mills Ltd. [2010(255)ELT481(SC)applied the "user test" theory (which was evolved in the Jawahar Mills Judgement ((2001)132ELT(S.C.) to determine the eligibility of an items for taking credit a....
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....it on the items in question cannot be denied. Further, in the above context, the Hon'ble High Court's judgement in the case of CCE, Ludhiana Vsn Hero Cycles Ltd., 2007 (207) ELT 663 (P&H) [as referred in the CESTAT's Final Order dated 05.12, 2007 ibid], is relevant, according to which the parts of capital goods used by assessee in fabrication, erection or installation of Cold Rolling Mill were held as eligible capital goods under Rule 57Q of the erstwhile Central Excise Rules, 1944 for availing Cenvat credit The appellant's case is fully covered by the judgements of the Hon'ble High Court & the CESTAT, In view of the foregoing discussions, it is clear that CENVAT credit cannot be denied to the appellant and accordingly, I accept the appeal of the appellant and pass the following order. ORDER The impugned order is set aside and the appeal No. 73-CE/APPL-1/MRT/2015 dated 04.03.15 is allowed". Relying on the findings of Commissioner (Appeals) in the appellant's own case which includes the period during which expansion of installed capacity was going on and fabrication of plant and machinery was admittedly done and the appellant states that in the presen....